By Wong Chin Huat
Malaysiakini
Mar 20, 2015

COMMENT The most common myth on the Kelantan syariah criminal code, hudud, that was passed by its state assembly yesterday and spread by its proponents – including the so-called moderates in PAS – is that it will not affect non-Muslims.

Legal apartheid between Muslims and non-Muslims will allow the proponents to accuse the non-Muslim critics of the syariah criminal system of “intervening in Muslim affairs”, “obstructing Muslims from fulfilling their religious authorities” and even “opposing Islam”.

The silence of the non-Muslims is vital in turn for the silencing of Muslim criticism.

While the world’s top Islamic scholars, such as Prof Sheikh Yusuf Qaradawi and Prof Tariq Ramadhan have argued directly against the implementation of hudud punishments on grounds this will cause injustice to the powerless among the Muslims, many Muslims in Malaysia who do not want hudud however fall back instead on the presence of the non-Muslims in our country.

To avoid directly saying “no” to hudud and being attacked for lack of being pious, they argue that since Malaysia is a multi-religious country with a substantial non-Muslim minority, it is not fair to impose this syariah system of punishment on non-Muslims or to have two sets of law for Muslims and non-Muslims. The non-Muslim objection then validates this indirect line of objection.

Legal apartheid – if implementable – then removes not only the non-Muslims’ objection by appealing to their “not in my backyard” human nature, but also those of Muslims by denying them the opportunity to object in others’ name.

Notwithstanding the growing disputes over custody of children when one parent becomes Muslim and struggles for bodies of alleged Muslim converts, legal apartheid is how personal and family laws are administered, not just for Muslims under a state’s syariah court, but also for Bornean natives under the Native Courts.

Relationship between criminals and victims

However, criminal law is fundamentally different from personal and family laws in two ways.

Personal and family laws normally govern individuals of the same faith. Where family matters such as marriage, divorce and inheritance are concerned, civil/religious law is like a specific contractual framework binding the voluntary or natural contracting parties.

Crime involves involuntary parties, at least for the victims. As a victim, you don’t get to choose your criminals – and criminals won’t choose to prey on those in the same legal-religious categories just to protect the judicial system from complications.

Unless, perhaps, all potential criminals take oaths, such as: “As a Muslim/non-Muslim, I shall not prey on a victim who is a non-Muslim/Muslim to avoid any legal mismatch in the criminal justice system.”

If so, we will see cases involving non-Muslim victims and Muslim criminals being tried in a syariah court and not civil court.

Right at the beginning, Section 2 of the Kelantan Syariah Criminal Code II (1993) 2015 states clearly: “This Code shall apply to every Muslim who is mukalaf [aged 18 years and above and of sound mind] for any offence under this Code committed by him In the state of Kelantan.”

Nowhere in the enactment does it state that cases involving non-Muslims as victims will be exempted.

Those who claim that non-Muslims have no business in discussing the Syariah Criminal Code must have been thinking of non-Muslims as criminals, never as victims.

It fits perfectly with the opt-asked rhetorical question by the proponents of Kelantan’s hudud: “Why should you fear harsh punishments if you don’t intend to commit crime?”

It seems that the interests of victims – at least where non-Muslims are concerned – are not a key consideration in law-making for the State Legal Adviser’s Office and the lawmakers.

Surprisingly, most critics of hudud are similarly blind to not notice the underlying assumption that “non-Muslims have only the stake as potential criminals”.

Thus, the involuntary nature of involvement in criminal cases is the first reason why legal apartheid is not feasible.

Spillover effect of criminal justice system

Most critics do recognise the problem arising when partners in the same crime – some being Muslim and the others non-Muslim – are tried under different judicial systems and given different punishments.

Most ask if that would be fair for the criminals. Human rights lawyers will point to Article 8 of the Federal Constitution, which prohibits “discrimination against citizens on the ground only of religion… in any law …”

Politically speaking, can the Muslim community accept such inequality in the long run? Will pressure not gradually mount to have non-Muslim criminals tried under syariah law too, if the victims are Muslim?

The implication is actually even wider than that.

If trials under syariah criminal law turn out to deliver harsher punishments than those under
common law, will there not be a tendency for Muslim criminals to engage and outsource the crimes to non-Muslims?

On the other hand, if trials under syariah criminal law turn out to be more merciful, perhaps due to the evidence requirement, will not the reverse take place, that is non-Muslims outsourcing crimes to Muslims?

Look at it this way: “crimes” are like “goods” for criminals, and punishments are the price they pay for committing crimes.

When there are two different crime punishment systems, the one offering lower effective punishments (combining both the severity of punishments and the likelihood of getting convicted) will attract more crimes.

The “spillover” effect is the second reason why legal apartheid is impossible.

Rightful stakeholders in syariah criminal code

Analogously, within the same territory, vehicles can only drive on the left or on the right – you cannot say let those using fossil fuel drive on the right and those using biofuel drive on the left.

You are bound to have catastrophes! If legal apartheid between these two is a myth, then syariah criminal law is either for all or for none. It cannot be only for some!

Then, the decision whether to have hudud cannot be rested with just the Muslims alone. The non-Muslims have every right to speak up and be heard in the debate. Their objection must not be demonised as anti-Islam.

Consumers buying electric appliances need not have knowledge about electrical engineering, or even be bothered about the complex design. They just need to know if the appliances will serve them well.

Likewise, while the Islamic scholars – the functional equivalent of the electrical engineers in the analogy – may cite the Quran and Islamic sources in the debate, the ordinary citizens must be allowed to just employ a utilitarian attitude to the issue: will it deliver a better quality of justice?

The Quranic requirements can be the frame of reference, but they must not be the premise of discussion, for the non-Muslims especially. After all, if I accept the Quran as the ultimate guide, I should have embraced Islam – why am I then remaining a non-Muslim?

WONG CHIN HUAT earned his PhD on the electoral system and party system in West Malaysia from the University of Essex. He is a fellow at the Penang Institute, and a resource person for electoral reform lobby, Bersih 2.0.